Nifong Faces More Serious Ethics Charges
"It almost doesn't get any worse than lying to the judge in terms of ethical violations, but lying to the judge about information that suggests the defendant is innocent is even worse," University of North Carolina at Chapel Hill law professor Joe Kennedy said.
The State Bar revised the ethics complaint it filed in December, adding that Nifong allegedly withheld exculpatory evidence from defense attorneys and lied about it.
Exculpatory evidence is evidence that can negate a defendant's guilt.
Nifong was already scheduled to appear in a hearing for the first charge, which alleges he violated ethics codes for pretrial comments he made early in the case, when he received the amended complaint,
The State Bar cites findings from April 2006 that a second set of DNA tests found excluded all of the Duke University lacrosse players as potential contributors.
It also states that Nifong and Dr. Brian Meehan, the director of DNA Security, which conducted the tests, agreed only to report to defense attorneys positive DNA matches to certain pieces of evidence. The complaint also states that they agreed to knowingly omit DNA matches to other men found on the accuser.
The defense requested at least four different times for Nifong to hand over all the testing.
In court hearings, Nifong told defense attorneys and the judge presiding over the case that he had released all of the evidence that would potentially benefit the defense.
"According to the state bar, they concluded he lied to the court -- not made a mistake," Kennedy said. "Not said something that wasn't a reasonable interpretation of the facts -- the state bar concluded that Mike Nifong lied to the judge in this case."
Nifong did not hand over the evidence until October even though state law requires a prosecutor to hand over exculpatory information as quickly as possible.
"He had an obligation to turn over the information as soon as he had it," Kennedy said. "He also had an obligation not to engineer a report that excluded information."
Nifong, had no comment on the latest charges against him.
"I'll do what I've been doing. Whatever I'll say, I'll say in the courtroom," he said leaving Wednesday's hearing at the State Bar headquarters in Raleigh.
During that hearing, the district attorney was granted an extension to make his official response to the State Bar's complaint. (Read the hearing transcript or watch the hearing.)
The new deadline is Feb. 21 but could be extended, if needed.
Nifong's attorney, David Freedman, has said it is common for such extensions to be granted.
"I'll say anytime any charges are filed with the State Bar, they are all serious, so we want to make sure we handle them all properly," he said.
Nifong's May trial date was also postponed until June. If found guilty, he could be disbarred.
Legal observers, however, say Nifong could face other troubles. Judge Osmond Smith, who is presiding over the lacrosse case, could find Nifong in contempt.
The district attorney could also be removed from office if someone were to file a complaint with the senior resident Superior Court judge and he finds the complaint violent.
That judge, Orlando Hudson, told WRAL on Wednesday, however, that he has not received any complaints against Nifong.
Several defense attorneys in the lacrosse sexual assault case said that since Nifong has recused himself from the case, they have no comment about his legal issues.
Their clients, Reade Seligmann, Collin Finnerty and David Evans, face first-degree sexual assault and kidnapping charges stemming from the accuser's allegations that she was assaulted by them at an off-campus party in March.
Last month, Nifong dropped rape charges against them after the accuser wavered in her account of key details in the case.
The three defendants have strongly proclaimed their innocence.
Two weeks ago, Nifong asked Attorney General Roy Cooper for a special prosecutor in the case.
According to Freedman, Nifong stepped down from the case because the pending ethics charges created a conflict of interest.
The state Attorney General's office is now reviewing the case.
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